Johnson v. Dick

• Citation: 281 S.W.2d 171
• Decision Date: 06 July 1955
• Docket Number: No. 12872,12872
• Parties: H. S. JOHNSON, Appellant, v. Albert DICK et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 171

281 S.W.2d 171

H. S. JOHNSON, Appellant, v. Albert DICK et al., Appellees.

No. 12872.

Court of Civil Appeals of Texas, San Antonio.

July 6, 1955.

Grover D. Edgar, Victoria, for appellant.

Cory & Larsen, C. C. Carsner, Jr., Victoria, Herman G. Nami, San Antonio, for appellees.

NORVELL, Justice.

Plaintiff, H. S. Johnson, brought this suit to enforce certain building restrictions. Upon motion for summary judgment, the court below decreed that he take nothing against the defendants, Albert Dick, H. A. Jamison, J. O. Ford and John L. Randle. As we view the case, the substantial question involved is the authority of a contractual 'architectural control committee' to set aside the building line restrictions governing the Parkwood Subdivision Addition to the City of Victoria, Texas.

The record applicable to the motion for summary judgment consists of admissions and stipulations of the parties, from which the following statement is made:

The original restrictions of the Parkview Subdivision were executed by H. A. Jamison on October 9, 1951, and are set forth in a written instrument containing some fourteen separate paragraphs which were made a part of all contracts of sales, deeds and other legal instruments whereby title and possession was divested out of Jamison and invested in another person. In the forepart of the instrument, Jamison recited that, 'All of the limitations and restrictions contained herein shall extend to and include the heirs, assigns, devisees, lessees and holders of every kind of and under all who may purchase or acquire any real property in said Parkwood Subdivision from myself who expressly retain and reserve in every part, parcel, and lot in Blocks 1 to 10, inclusive, in Parkwood Subdivision, the proprietary right to the enforcement and observance of all limitations and restrictions hereinafter set forth.'

Paragraphs 4, 5, 9, 10, 11 and 13 of the restrictions read as follows:

'4. No dwelling or building shall be permitted on any lot at a cost of less than Five Thousand and No/100 ($5,000.00) Dollars based upon cost levels prevailing on the date these covenants are recorded, it being the intention and purpose of the covenant to assure that all dwellings shall be of a quality of workmanship and materials substantially the same or better than that which can be produced on the date these covenants are recorded at the minimum cost stated herein for the minimum permitted dwelling size. The ground floor area of the main structure exclusive of open porches and garages shall not be less than seven hundred square feet.

'5. No building shall be located on any lot nearer to the front lot line or nearer to the side street line than the minimum building setback lines shown on the recorded plat (25 feet and 4 feet, respectively). The maximum setback line for the main dwelling from the front lot lines shall be no more than ten (10) feet behind the minimum building setback lines shown on the recorded plat. No building shall be located nearer than four (4) feet to an interior lot line. No building shall be located on any lot nearer than five (5) feet to the rear lot line. For the purpose of this covenant, eaves, steps and open porches shall not be considered as a part of a building, provided, however, that this shall not be construed to permit any portion of a building on a lot to encroach upon another lot. * * *

'9. No building shall be erected, placed, or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the architectural control committee as to quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation. No fence or wall shall be erected, placed, or altered on any lot nearer to any street than the minimum building set back line unless similarly approved.

'The architectural control committee is composed of H. A. Jamison, j. O. Ford and John L. Randle, all of Victoria, Texas. A majority of the committee may designate a representative to act for it. In the event of death or resignation of any member of the committee, the remaining members shall have full authority to designate a successor. Neither the members of the committee, nor its designated representative shall be entitled to any compensation for services performed pursuant to this covenant. At any time, the then record owners of a majority of the lots shall have the power through a duly recorded written instrument to change the membership of the committee or to withdraw from the committee or restore to it any of its powers and duties.

'The committee's approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its designated representative fails to approve or disapprove within thirty days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.

'10. No fence, wall hedge or shrub planting which obstructs sight lines at elevations between 2 and 6 feet above the roadways shall be placed or permitted to remain on any corner lot within the triangular area formed by the street property lines and a line connecting them at points 25 feet from the intersection of the street lines. The same sight-line limitations shall apply on any lot within 10 feet from the intersection of a street property line with the edge of a driveway. No tree shall be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines.

'11. These covenants are to run with the land, shall be binding on all the parties and all persons claiming under them, until November, 1976, at which time said covenants shall be automatically extended for successive periods of ten (10) years unless by a vote of the owners of title to the majority of the lots in this subdivision, it is agreed to change the said covenants in whole or in part, which agreement to change the covenants in whole or in part shall be effected by filing the same for record in the Deed Records of Victoria County, Texas, at least one (1) year prior to the expiration of the twenty-five (25) year or ten (10) year periods thereafter. * * *

'13. If the party hereto shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person or persons owing any real property situated in this subdivision to prosecute any proceedings at law or in equity against the person violating or attempting to violate any such covenants, and either to prevent him from so doing or to recover damages or other dues from such violation.'

On January 10, 1952, the Victoria Real Estate Company, a Texas Corporation, and J. O. Ford and wife, Lena Ford, as the owners of all the unimproved lots of the Parkwood Subdivision at that date, adopted an amended set of restrictions relating to such lots. It was provided that, except as expressly set forth, all the 'provisions, covenants, restrictions and limitations set forth in...